Amicus Curiae Brief — Hill v. Rumbles

if RECEIVED

OCT 2.8 1999

No. 99-537 1 OFFICE OE THE CLERK

SUPREME-COURT,_ULS.

In the Supreme Court of the United States

DONALD R. HILL, et al.

Petitioners,

Y.

MACARTHUR RUMBLES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF 36 STATES AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY*

State Solicitor

*Counsel of Record

DAVID M. GORMLEY

Associate Solicitor

TODD R. MARTI

Assistant Attorney General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-8980

Counsel for Amici States

BILL PRYOR CARLA J. STOVALL [

Attorney General Attorney General

State of Alabama State of Kansas

BRUCE M. BOTELHO ANDREW KETTERER

Attorney General Attorney General

State of Alaska State of Maine

JANET NAPOLITANO JENNIFER M. GRANHOLM :

Attorney General Attorney General

State of Arizona State of Michigan

RICHARD BLUMENTHAL MIKE MOORE

Attorney General Attorney General ;

State of Connecticut State of Mississippi

M. JANE BRADY JEREMIAH W. (JAY)-NIXON

Attorney General Attorney General

State of Delaware State of Missouri

THURBERT E. BAKER JOSEPH P. MAZUREK

Attorney General Attorney General

State of Georgia State of Montana

EARL I. ANZAI DON STENBERG

Attorney General Attorney General '

State of Hawaii State of Nebraska

ALAN G. LANCE FRANKIE SUE DEL PAPA

Attorney General Attorney General

State of Idaho State of Nevada

THOMAS J. MILLER PHILIP T. MCLAUGHLIN

Attorney General Attorney General

State of lowa State of New Hampshire

JOHN J. FARMER, JR.

Attorney General

State of New Jersey

PATRICIA A. MADRID

Attorney General

State of New Mexico

ELIOT SPITZER

Attorney General

State of New York

MICHAEL F. EASLEY

Attorney General

State of North Carolina

HEIDI HEITKAMP

Attorney General

State of North Dakota

W. A. DREW EDMONDSON

Attorney General

State of Oklahoma

HARDY MYERS

Attorney General

State of Oregon

D. MICHAEL FISHER

Attorney General

State of Pennsylvania

SHELDON WHITEHOUSE

Attorney General

State of Rhode Island

CHARLES M. CONDON

Attorney General

State of South Carolina

MARK BARNETT

Attorney General

State of South Dakota

JOHN CORNYN

Attorney General

State of Texas

JAN GRAHAM

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

MARK L. EARLEY

Attorney General

Commonwealth of

Virginia

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

GAY WOODHOUSE

Attorney General

State of Wyoming

EE ET i SIDA LITA REL NINE 16 Coe »

QUESTION PRESENTED

Are prisoners required by 42 U.S.C. 1997e(a), as

amended by the Prison Litigation Reform Act, to exhaust

administrative remedies before filing suit for dai nages?

TABLE OF CONTENTS

PAGE

Ss CI as 8 re REI icine sath sncedcnttnminsinsnsnanmninadctaatonaiiaah il

STATEMENT OF ARGICT INTEREST .ccosesscccsecccsscssncsassconseen I

REASONS FOR GRANTING THE WRIT ...............ccesseeeees e

I. The Question Presdented Is Critically Important

to The Nation’s 4,372 Prisons and Jails. ................0068 3

Il. Prison Administrators Need Clear Guidance on

URE CII INNIS wi.sciisnccnnsssnsenaicnieciatiebivenaiigsetaa tesdaldaantia 8

Ill. Ne PO Ee BIG aihisssknierstarsccesstinscsmcrnernaiands 9

er ok MeN asrebdssiniscanibcdineniacilic nhenioaiisaanncaslanlaesseasbabadiienselet 12

TABLE OF AUTHORITIES

PAGE

Cases

Beeson vy. Fishkill Correctional Facility,

28 F. Supp. 2d 884 (S.D.N.Y. 1998) ............ccccccccsseses 9

Garrett v. Hawk,

CLF Stee 6 CR RIED ivckscdincatdticvaceanteccunianie 4

Jones v. North Carolina Prisoners’ Labor Union,

GOS Rie ROR CAAT peonclesavlandidiasieb acids Manan 7

Lacey v. C.S.P. Solano Medical Staff,

99D F. Sap. LISP CED. Cal, 2997) svi scinshissssscrceceeene 9

Langford v. Couch,

Se, SSR LS DOF CED. Vi TIFF) iiccsvntnstsicancseccendanes 9

Liner v. Goord,

F.3d CEE, SI iviccasitesieinconsn 8

McCarthy v. Madigan,

Ad SS ai SE ET iva nis iahapeiassaga clan 9

Patsy v. Florida Board. of Regents,

SOF Bes SE tiiiicisaitamaiiaen 9

Polite v. Barbain,

1998 U.S. Dist. LEXIS 3600

CR EAIA. Sx: SD sacs ceaiccseiiibahn dda iteliseiaamemaiaobsceniagh 9

Procunier v. Martinez,

SEGA. SOU Fe csssitiscnstnatsnselisiciasauincitaanns sscntiie 3

Spence v. Mendoza,

993 F. Supp. 785 (E.D. Cal. 1998) ...........csssesseeees 9,10

Turner vy. Safley,

GE Was Fie CRT Pitinnidenieiniiloucinanaeianads. 8

West Virginia University Hospitals, Inc. v. Casey,

MS Fa TE CE Dinisncasénseiinenincinidetininndialaaveasianiaas |

ill

Whitley v. Hunt,

158 F368 SEZ (SR Cie. IGFE) ccsnnssnsctnssscetccsccscsisssnsistans 4

Wyatt v. Leonard,

F.3d (Bi CAP, EGFP) cssséccnsccseicinstentticlaii 8

Statutory Provisions

28 USL. CESAR 1 A GR) ccccsccsssccascietonssontasensensseantatusiaaiiias 1]

42 USA. 199 TEER) ccsscccctsccinasennssandesenssdinaiahammaiaiaan 2,4,7,9

Other Authorities

A. Beck & C. Mumola, Prisoners in 1998

(Bureau of Justice Statistics,

U. S. Dept. OF Justice 1999) .cccccrcccssocrcscscsccccccccsssssssoseee 6

S. Brakel, Administrative Justice In The

Penitentiary: A Report on Inmate

Grievance Procedures,

1982 Am. Bar Founda. Res. J. 111 (1982) .........0..0... l

F. Cohen, Disciplinary Proceedings and Mental

Iliness, 44) Corrections Managers’

Report 3 (American Correctional Association

G. Cole, R. Hanson, and J. Gilbert, Alternative

Dispute-Resolution Mechanisms for

Prisoner Grievances: A Reference

Manual for Averting Litigation,

(National Institute of Corrections,

U. S. Dawe. OF FaGbeD FSP cresemscncestccinsisectennnnetnins py

Criminal Justice Institute, Inc.,

The Corrections Yearhook—1998 (1999)........... 3,4,6

iV

D. Dillingham and L. Singer, Complaint

Procedures in Prisons and Jails:

An Examination of Recent

Experience (National Institute of

Corrections, U. S. Dept. of Justice 1980)... 10

M. Fleisher, R. Rison & D. Helman, Female

Inmates: A Growing Constituency

in the Federal Bureau of Prisons,

1(4) Corrections Management

EE te CONE B ceihetatantigtssndtesiecbensininsetinscnsianndessensses 6

Grievance Mechanisms in State Correctional

Institutions and Large City Jails

(General Accounting Office, June 17, 1977).............. 4

R. Hansen and H. Dalay, Challenging the

Conditions of Prisons and Jails: A

Report on Section 1983 Litigation

(Bureau of Justice Statistics, U. S.

es Gar PUNE BOPP Rak sincticksdiccinnnsecbtinvinnsctsanasestennen 10

Inmate Grievance Program: Annual Report—1998

(New York Department of

SO , 10

E. Loughran, Staiistics, Predictions and Reality:

How Do We Make Sense of

Changing Juvenile Crime? \(1)

Corrections Management Quarterly 67 (1997).......5, 6

L. Meachum, Judicial Business of the United

States Courts: 1988 Report of the

Director (Administrative Office of the

CIOS HANS COMES DPF) ccsccccccccscscscecscescrcccnssessencces 7

K. Maguire & A. Pastore,

Sourcebook of Criminal Justice Statistics 1996 ......... 3

Managers Need Comprehensive Systems for

Assessing Effectiveness and Operation

of Inmate Grievance Mechanisms,

(General Accounting Office, Oct. 17, 1977)... 2

Vv

V. McArthur, Inmate Grievance Mechanisms:

A Survey of 209 American Prisons,

38 Federal Probation 41 (Dec. 1974)... eeeeeeeeee |

M. Morash, T. Bynum & B. Koons,

Women Offenders: Programming Needs

and Promising Approaches, (National

‘ Institute of Justice, U. S. Dept.

I cence catinenicasaticgatendieiinisinnisernichhiektiomnacaken 6

P. Rubin & S. McCampbell, The Americans

With Disabilities Act and Criminal Justice:

Mental Disabilities and Corrections,

(National Institute of Justice, U. S. Dept.

Oe Fa tpiccheiiicicadansnasaicinsaiessnabinnsteibianensdncnianashins >

S. Russo, State Prisoners and the

Exhaustion of Administrative Remedies:

Section 1983 Jurisdiction and the

Availability of Adequate State Remedies,

7 Seton Hall L. Rev. S66. ( 9976) q..ccsccscesscsccascsscssess a

S. Sampson, Project for Older Prisoners,

1(2) Corrections Managers’

IE FS 6 sre ntpaiciathicnesncsactitasenidinsgnssncsonnnsasecensenaein 5

H. Steadman & B. Veysey, Providing Services

for Jail Inmates with Mental Disorders

(National Institute of Justice, U. S. Dept.

OE ID Be Risitcdeccshesssbcseentinctntsaitilbebsainbebinnvinwesnianssn 5

C. Stewart, Management Response to Sexual

Misconduct Between Staff and

Inmates, 2(2) Corrections Management

SI Bee CIID with cniecnedcctntntananbanarscaniiinianpbaniatin 6

STATEMENT OF AMICI INTEREST

California’s petition addresses the continuing viability

of one of the States’ most important tools for managing their

prisons and jails—inmate grievance systems and _ similar

dispute resolution programs. The decision below diminishes

the effectiveness of those systems by allowing prisoners to

literally make a “federal case” out of every routine dispute

with correctional officials, and in the process, deprives the

States of the opportunity to resolve inmates’ concerns

internally—before litigation.

Internal dispute resolution systems serve a_ vital

function in the States” management of their growing prison

and jail populations, for those systems provide an

inexpensive and effective way for dissatisfied prisoners to

point out internal practices that may need improvement. And

“[f]or the prison administrator[,] this involves using the

system beyond its da*’-to-day effects: periodically reviewing

the grievances to identify patterns, to anticipate problems,

and to formulate policies and procedures that respond to

them.” S. Brakel, Administrative Justice In The Penitentiary:

A Report on Inmate Grievance Procedures, 1982 Am. Bar

Founda. Res. J. 111, 129 (1982) (emphasis in original).

Indeed, that vital impetus for self-correction was a primary

reason that administrators initially implemented grievance

systems. V. McArthur, Inmate Grievance Mechanisms: A

Survey of 209 American Prisons, 38 Federal Probation 41, 44

(Dec. 1974).

And by encouraging internal self-improvement, those

systems resolve a significant number of disputes that would

otherwise end up in court. Grievance systems are quite

effective in that regard, with empirical studies indicating that

a substantial number of inmate complaints lead to

2

modifications of official policy. Managers Need

Comprehensive Systems for Assessing Effectiveness and

Operation of Inmate Grievance Mechanisms, (General

Accounting Office, Oct. 17, 977) 2-3. Those grievance-

prompted changes in turn avert many lawsuits that would

ctherwise “require defendants and other staff members to put

in long hours conferring with counsel, answering

interrogatories, giving depositions, preparing for trial,

‘managing’ the press and testifying at trial. Many non-

frivolous suits concern small monetary sums, and the time

devoted to them by administrators is disproportionate to the

amounts involved.” G.Cole, R. Hanson, and J. Gilbert,

Alternative Dispute-Resolution Mechanisms for Prisoner

Grievances: A Reference Manual for Averting Litigation,

(National Institute of Corrections, U.S. Dept. of Justice

1984) 5-6.

Moreover, the grievance systems cost much less than

litigation. Although it costs States an average of between

$1,200 and $1,500 to litigate a prisoner’s grievance,

resolving the same grievance through administrative

proceedings costs an average of $166. G.Cole, and

J. Gilbert, Alternate Dispute Resolution Mechanisms for

Prisoner Grievances, 9 Just. Sys. J. 306, 308 n.1, 315 (1984).

Congress understood ihat when, in 1996, it passed the

Prison Litigation Reform Act (“PLRA”), modifying

42 U.S.C. 1997e(a) to mandate exhaustion of administrative

remedies before a prisoner sues. The decision below ignores

the statute’s intent, reimposing the high operational costs that

the PLRA was designed to limit. That decision is wrong, and

left undisturbed, it and others like it will not only frustrate

Congress’s efforts to limit inmate suits, but will also exact a

costly toll of both time and money from States, which will be

forced once more to battle in federal court about issues that

often can be resolved much more efficiently through

grievance programs. The States have a vital interest in seeing

that the congressional intent embodied in the PLRA is carried

out by the courts, and therefore urge the Court to review the

judgment below.

REASONS FOR GRANTING THE WRIT

Three compelling reasons point to the need for review

of the judgment below: (1) its impact on the day-to-day

operation of prisons and jails is so significant; (2) conflicting

lower-court decisions on the question presented have created

great uncertainty for both State officials and the prisoners

they oversee; and (3) the Ninth Circuit erred.

I. The Question Presented Is Critically Important to

The Nation’s 4,372 Prisons and Jails.

The problems facing our prisons and jails “are

complex and intractable . . . requir[ing] expertise,

comprehensive planning, and the commitment of resources,

all of which are peculiarly within the province of” corrections

professionals. Procunier v. Martinez, 416 U.S. 396, 405

(1974). The decision below, and others like it in jurisdictions

containing some of the nation’s largest prisons and _ jails,

greatly complicates that task.

State and local governments now operate at least

4,372 prisons and jails. Criminal Justice Institute, Inc., The

Corrections Yearbook—l998, 67 (1999); K. Maguire &

A. Pastore, Sourcebook of Criminal Justice Statistics 1996.

Because inmate grievance systems provide valuable

operational data and resolve significant numbers of disputes,

all but two States have established some type of inmate

grievance system. Broad coverage has long been a key

4

design principle for such systems, for as a General

Accounting Office study recognized more than two decades

ago, a grievance system, to be successful, “must be

applicable to as broad a range of issues as_ possible.”

Grievance Mechanisms in State Correctional Institutions and

Large City Jails (General Accounting Office, June 17, 1977)

at 2.

The decision below produces exactly the opposite

result. It holds that prisoners may ignore administrative

remedies whenever they seek damages that are not available

through grievance systems. That reading of § 1997e(a)

creates an exception that effectively abrogates the statute's

general rule, because almost all prisoners seek damages, and

no State except Louisiana has a grievance system that

authorizes damages for anything other than the loss of

personal property. Similar precedents control in the Fifth and

Tenth Circuits, which together with the Ninth Circuit, contain

the largest prison and jail systems in the country. See Garrett

v. Hawk, 127 F.3d 1263 (10th Cir. 1997); Whitley v. Hunt,

158 F.3d 882 (Sth Cir. 1998); The Corrections Yearbook—

1998, 2,210. If those precedents stand, they will undermine

the utility of administrative dispute resolution systems where

they are needed most.

And the decision below will surely have palpable

effects inside prison walls:

[If] a prisoner may circumvent _ state

agencies by bringing a section 1983 action,

corrections personnel may not become

aware of, and hence may not be able to

rectify, administrative deficiencies until

federal litigation is commenced. ... Rather

than have state policymakers determine the

a

5

appropriate reform, the federal judiciary

interposes its own judgment.

* ok

Although this might benefit the individual

prisoner bringing the action, problems

affecting the entire prison population may

remain unresolved.

S. Russo, State Prisoners and the Exhaustion of

Administrative Remedies: Section 1983 Jurisdiction and the

Availability of Adequate State Remedies, 7 Seton Hall L.

Rev. 366, 392 and n.148 (1976) (emphasis added). The

PLRA sought to eliminate that problem, but the trend toward

the pre-PLRA approach, exemplified by the decision below,

could not have come at a worse time, for the States’ prison

systems are facing ever-more-challenging burdens as their

populations continue to grow.

Qualitatively, corrections staff are facing significant

new challenges in housing menially ill prisoners, prompting

unprecedented, and still evolving, changes to operating

procedures. H. Steadman & B. Veysey, Providing Services

for Jail Inmates with Mental Disorders (National Institute of

Justice, U.S. Dept. of Justice 1997); P. Rubin &

S. McCampbell, The Americans With Disabilities Act and

Criminal Justice: Mental Disabilities. and Corrections

(National Instituie of Justice, U.S. Dept. of Justice 1995);

F. Cohen, Disciplinary Proceedings and Mental Illness, 4(4)

Corrections Managers’ Report 3 (American Correctional

Association 1998). At the same time, the prison population

now includes more elderly inmates and more young

offenders, and both groups need special accommodations.

S. Sampson, Project for Older Prisoners, \(2) Corrections

Managers’ Report I! (1995); E. Loughran, Statistics,

6

Predictions and Reality: How Do We Make Sense of

Changing Juvenile Crime? 1(1) Corrections Management

Quarterly 67, 70-71 (1997). Last, but by no means least,

there has been a “massive expansion of the female inmate

population,” raising such unique challenges as pregnancy and

child care issues, the difficulties inherent in cross-gender

supervision, and the need for a distinct custodial atmosphere.

M. Fleisher, R. Rison & D.Helman, Female Inmates: A

Growing Constituency in the Federal Bureau of Prisons, \(4)

Corrections Management Quarterly 28, 29 (1997);

M. Morash, T. Bynum & B.Koons, Women Offenders:

Programming Needs and Promising Approaches, (National

Institute of Justice, U.S. Dept. of Justice 1998); C. Stewart,

Management Response to Sexual Misconduct Between Staff

and Inmates, 2(2) Corrections Management Quarterly 81

(1998).

Those qualitative challenges are complicated by

significant quantitative changes as well. The nation’s prison

population increases by more than 1,150 inmates each week,

and has grown by 58 percent in this decade. A. Beck &

C. Mumola, Prisoners in 1998 (Bureau of Justice Statistics,

U.S. Dept. of Justice 1999) at 1. To cope with the increasing

number and changing nature of inmates, correctional

agencies have hired large numbers of new employees who

must be integrated into their constantly changing operational

systems. The Corrections Yearbook—1998, 142 (51,841 new

hires in 1997).

~

The combined effect of those changes has been to put

new stresses on correctional systems. The States must cope

with novel challenges affecting unprecedented numbers of

prisoners, and must do so with growing numbers of new

staff. Although they conscientiously try to, and usually

succeed in, meeting those challenges, shortfalls are

inevitable. Grievance systems provide invaluable data about

7

the nature and potential solutions for the resulting problems.

The decision below and the trend it typifies deprive officials

of that data. That may benefit individual plaintiffs, but in the

end, it hurts far more prisoners.

Further, the approach adopted below increases the

burden of litigation. Many matters that would otherwise be

resolved internally will go directly to the federal courts.

Federalizing those usually trivial disputes requires the

diversion of scarce State resources because “during the

course of litigation, administrators and other corrections

personnel may be called as witnesses or be named as parties

to the proceedings. As a consequence, these individuals are

diverted from their managerial and supervisory functions.

The result is a less efficient institutional operation.”

S. Russo, supra, at 393. See also G. Cole, R. Hanson &

J. Gilbert, supra at 5-6 (emphasis added). Although the

number of prisoner suits has declined since the passage of the

PLRA, their burden is still substantial and is likely to

increase if the gatekeeping function of § 1997e(a) can be

sidestepped with a simple demand for damages.

L. Meachum, Judicial Business of the United States Courts:

!988 Report of the Director (Administrative Office of the

United States Courts 1999) 146 (noting that 26,462 prisoner

civil rights and prison condition suits were filed in 1998).

In sum, the Ninth Circuit’s decision and similar

decisions elsewhere will make it harder for corrections

officials to deal with day-to-day operational problems.

Instead, resolution of those problems will become the

business of the federal courts, which “are not equipped by

experience or otherwise to ‘second guess’ the decisions

of.. . [prison and jail] administrators.” Jones v. North

Carolina Prisoners’ Labor Union, 433 U.S. 133, 137 (1977)

(Burger, C.J., concurring). That hardly “reflects the...

healthy sense of realism” that recognizes “that needed

8

reforms in the area of prison administration must come, not

from the federal courts, but from those with the most

expertise in this field—prison administrators themselves.” /d.

Indeed, it flies in the face of this Court’s clear direction that

“prison administrators ... and not the courts, are to make the

difficult judgments concerning institutional operations.”

Turner v. Safley, 482 U.S. 78, 89 (1987). That far-reaching

impact on State and local prison officials, together with the

like effect on the courts themselves, shows why this case

merits review, even apart from the clear circuit split on the

question.

Il. Prison Administrators Need Clear Guidance on

This Recurring Issue.

The circuit split that California’s petition describes is

real, and has grown since the petition was filed. See Wyatt v.

Leonard, F.3d (6th Cir. 1999) (holding that

“prisoners must exhaust the prison’s grievance procedures

before filing suit in federal court even though the damages

remedy sought is not an available remedy in_ the

administrative process”). That widening split of authority

has created great uncertainty for the nation’s prison

administrators, as the Second Circuit recently noted: “[t]he

law concerning the PLRA’s exhaustion requirement is in

great flux. Several circuits, as well as district ccurts in this

circuit, are split on... whether the administrative exhaustion

requirement is inapplicable where the relief requested—i.e.,

strictly monetary damages—is not ‘available’ through the

administrative process.” Liner v. Goord, F.3d

(2nd Cir. 1999). Frustratingly enough, that split has itself

inhibited other courts’ resolution of the issue, as evidenced

by the fact that the Second Circuit’s Liner decision cited the

split as grounds for avoiding the issue.

Because prisoner suits continue to be filed in great

number, and because district courts have reached markedly

different conclusions on the issue, see Langford v. Couch, 50

F, Supp.2d 544, 546 n.9 (E.D. Va. 1999) (collecting cases),

courts and litigants in the seven circuits that have not ruled

on the issue lack clear guidance. Indeed, there are conflicting

decisions on point within some districts. Compare Polite v.

Barbain, 1998 U.S. Dist. LEXIS 3600 (S.D.N.Y. 1998) with

Beeson vy. Fishkill Correctional Facility, 28 F. Supp.2d 884

(S.D.N.Y. 1998). Moreover, because the issue has not been

resolved in the Second, Third or Fourth Circuits, that pattern

will continue for the foreseeable future, absent guidance from

this Court.

Il. The Ninth Circuit Erred.

Finally, review is warranted because the decision

below is at odds with the statute. Congressional intent is of

“paramount interest” in any exhaustion inquiry. McCarthy v.

Madigan, 503 U.S. 140, 144 (1992). Where Congress has

mandeted exhaustion, its will must be enforced. Patsy v.

Florida Board. of Regents, 457 U.S. 496, 502 n.4 (1982).

There are at least two ways, in addition to those described in

the petition, that the Ninth Circuit’s decision strays from

Congress’s intent.

First, the court of appeals misconstrued the meaning

of the term “available” in § 1997e(a). The court appears to

have adopted the analysis of Lacey v. C.S.P. Solano Medical

Staff, 990 F. Supp. 1199, 1205 (E.D. Cal. 1997), which held

that prisoners have no remedies “available” to them for

purposes of § 1997e(a) if they seek damages available in

administrative proceedings. See Pet. at 10a. In addition to

other flaws in the Lacey analysis, see Spence v. Mendoza,

993 F. Supp. 785, 787-788 (E.D. Cal. 1998), that view fails

10

to account for the significant changes that prisoners can

effect through prison grievance systems even where those

grievance systems do not themselves offer damages.

Administrative remedies in the nation’s prisons have

helped both prison administrators and inmates, in spite of the

fact that those remedies almost never include damages. As

discussed above, prison grievance systems have led to

significant systemic changes benefiting inmates. Further,

those remedies resolve a relatively high percentage of

individual claims, even though the vast majority of grievance

systems do not provide for damages. D. Dillingham and

L. Singer, Complaint Procedures in Prisons and Jails: An

Examination of Recent Experience (National Institute of

Corrections, U.S. Dept. of Justice 1980) 34-35, Chart 2 and

Table 13. Indeed, the most recent study of New York’s

grievance system indicated that 36 percent of: prisoners’

complaints were sustained in whole or in part. /nmate

Grievance Program: Annual Report—l1998 (New York

Department of Correctional Services 1999) 10.

In contrast, only six percent of prisoner-plaintiffs

obtain any relief in court. R.Hansen and_ H. Dalay,

Challenging the Conditions of Prisons and Jails: A Report on

Section 1983 Litigation (Bureau of Justice Statistics, U.S.

Dept. of Justice 1995) at 19, Table 4. Grievance systems can

accomplish much for prisoners—and do so at a fraction of

the cost of litigation. Congress’s judgment that a// inmate

grievances ought to go that route first regardless of the

particular relief sought is surely a rational one, and should

not be obviated by the short-sighted view that remedies are

not “available” if they do not provide damages.

Indeed, that principle is well illustrated by the facts of

this case. Inmate Rumbles sought three types of relief: (1) an

investigation into staff attitudes towards prisoners, (2) an

apology, and (3) $450,000 in punitive damages. Although

California’s grievance system could not address his decidedly

optimistic valuation of his damage claim, it was ideally

suited for evaluating the other relief sought. Rumbles’s

pursuit of administrative relief may well have resolved his

claim, and could at least have narrowed the issues.

Second, had Congress intended to limit prisoners’

obligation to pursue administrative procedures (as the court

of appeals held), it likely would have inserted language like

that found in the Antiterrorism and Effective Death Penalty

Act (AEDPA), which Congress passed the same week as the

PLRA. The AEDPA expressly excuses remedies when

“circumstances exist that render [state remedies] ineffective.”

28 U.S.C. 2254(b)(1)(A)(ii). No similar language appears in

§ 1997e, and indeed the PLRA’s amendments to that

provision eliminated a former reference to “effective”

administrative remedies. As the Court said about a similar

dichotomy in the wording of other statutes, “Congress could

easily have” stuck with the former language, but “it chose

instead to enact more restrictive language and we are bound

by that restriction.” West Virginia University Hospitals, Inc.

v. Casey, 499 U.S. 83, 99 (1991). The court of appeals’

contrary ruling now warrants review.

12

CONCLUSION

For the foregoing reasons, the amici States urge the

Court to grant the writ.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY*

State Solicitor

*Counsel of Record

DAVID M. GORMLEY

Associate Solicitor

TODD R. MARTI

Assistant Attorney General

30 East Broad Street, 17" Floor

Columbus, Ohio 43215-6001

(614) 466-8980